Even though India’s Constituent Assembly laboured for nearly three years to draft the Constitution, the body’s chairman, BR Ambedkar, was sanguine about the limitations of the document. “What should be the policy of the state, how the society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances,” he said. “It cannot be laid down in the Constitution itself, because that is destroying democracy altogether.”
While he emphasised the will of the people, this cannot be construed as support for the will of the majority. In fact, the Constituent Assembly wrote numerous checks and balances into the the document to protect the rights of minorities. The Preamble of the Constitution contains the bedrock on which the document is built – justice, equality, liberty and fraternity.
On Sunday, Union Minister Anantkumar Hegde of the Bharatiya Janata Party rekindled a controversy that has been raging for some time. In a speech in Karnataka, Hegde said that the BJP-led government at the Centre is here “to change the Constitution”. He made this comment while pointing to the secular nature of the document, particularly the word “secular” in the Preamble.
Hegde noted that the Constitution has been changed several times in 67 years since it was adopted: there have been over 100 amendments to it. In 1976, the Congress government of Indira Gandhi moved the 42nd Amendment to add the terms “secular” and “socialist” to the Preamble, in addition to several other articles and sections. The 42nd Amendment also contained elaborate clauses that clipped the powers of the Supreme Court to review future Amendments, almost making India a parliamentary sovereignty.
The Emergency-era 42nd Amendment was famously called the “Constitution of Indira” by the Opposition, a reference to Prime Minister Indira Gandhi’s autocratic ways. It was, in a way, a reaction to the Supreme Court’s articulation of the “basic structure doctrine” in 1973, which had placed certain aspects of the Constitution, such as the Fundamental Rights, beyond Parliament’s amending powers.
But by the 1980s, the basic structure doctrine was restored in totality by the Supreme Court, which struck down several parts of the 42nd Amendment. Even before that, the Janata Party government which took over after the Emergency, had moved the 43rd and 44th Amendments which also struck at most parts of the 42nd Amendment. The special place of Fundamental Rights was restored and these were once again positioned categorically beyond the Parliament’s amending powers. The amended Preamble, however, was left unchanged because it only, in the words of the Supreme Court, “expressed explicitly what was implicit”.
Though Ambedkar’s Constituent Assembly had faced a strong demand to include the word “secular” in the document, that is not how it established the secular character of India. The way the Fundamental Rights and the Directive Principles of State Policy were formulated ensured that. This is why the very idea that one could make India’s Constitution a “Hindu” or “Muslim” code by merely removing the term “secular” is ill founded. Given that the Fundamental Rights, as interpreted by the judiciary, cannot be altered through legislation, the secular character of the Constitution cannot be changed at the whims and fancies of a political party, even if it enjoys absolute majority.
Religion and Constituent Assembly
The question of how to deal with the concept of religious rights saw strident, divisive debates in the Constituent Assembly . This was primarily the effect of Partition, which resulted in riots that killed thousands and polarised the political discourse. Unlike many other Constitutional democracies, India chose to make propagation of religion a fundamental right – but not before heated arguments in the house.
On December 6, 1948, for instance, Loknath Mishra, a Member from Orissa, moved an Amendment during which he claimed that the idea of a “secular state” being projected by the Constituent Assembly was a “slippery phrase”.
While the Constitution set out to keep the state away from religion, it allows individuals a fundamental right to propagate religion in which the state cannot interfere. “Justice demands that the ancient faith and culture of the land should be given a fair deal, if not restored to its legitimate place after a thousand years of suppression,” Mishra asserted. Allowing propagation of religion as a fundamental right would pave the way for the complete annihilation of Hindu culture. Islam, he said, had already declared its hostility to Hindu thought. And Christianity was trying to invade through the “back door”.
Mishra’s opinion did not find the support of the majority. The final document gave citizens the “freedom of conscience and free profession, practice and propagation of religion”.
There were other interesting interventions too. HV Kamath, another member, cited the European experience and said the link between the Church and the state could only cause “pernicious effects”. Even in India, he pointed out that Asoka’s adoption of Buddhism as the state religion led to “some sort of internecine feud” between Hindus and Buddhists, which later resulted in Buddhism being wiped out in the country.
However, Kamath wanted the Constitution to allow the state to impart spiritual training. The real meaning of religion was “dharma”, the moral and spiritual codes enshrined in the religions, which the state should inculcate in its citizens, he said. This too did not find acceptance in the Assembly.
More radical recommendations included suggestions that the state should completely withdraw from anything that seems religious. To establish the supremacy of the state, it was proposed that religion had to be slowly replaced with complete loyalty to a secular state.
What finally emerged was a composite structure of a state respecting all religions that balanced the need for reform and the individual’s right to religious practice. The had been accommodated due to the prevalence of caste and untouchability in Indian society, features that were unique to the country and absent in the European democracies that guided the drafting of the Constitution.
In the end, the state was bestowed with powers to regulate religious institutions. There were clear demarcations for what it could touch and what it could not. Interpreting these clauses, the Supreme Court had later, in a clutch of judgements, articulated what constitute religious activities of a religious institution and what was secular in such organisations. For example, the process of appointing a priest, it said in 1972, was a secular activity, whereas who the priest was and what his qualifications should be were religious subjects that the state should respect.
Secularism in the Constitution
The discussion on the Preamble of the Constitution took place in the concluding days of the Constituent Assembly in October 1949.
More than the term “secular”, it was the decision to characterise India as a “socialist” state that saw a highly divided house. In fact, when KT Shah wanted the Assembly to explicitly make the country “socialist, federal and secular”, Ambedkar’s opposition, as Professor Sabyasachi Bhattacharya points out, was primarily to the term “socialist”. Ambedkar saw this move as “purely superfluous” and wanted to leave this open ended because he believed the people should be in a position to change the order of the society if they want to in the future.
When the Preamble was taken up for discussion and voting, Kamath wanted this introductory passage to the Constitution to start in the name of God. This was vehemently opposed by many other members, some of whom said such a move would endanger the very foundation of religious rights in the Constitution. At the same time, proposals to use the term “secular” in the document was also defeated as most of such amendments were moved along with those seeking to make India a socialist state.
Minister Hegde’s provocative comments raise an important question: given that the term “secular” was inserted into the Constitution decades after it was adopted, will removing the word make India any less secular?
The answer is quite straightforward. Read in totality, the spirit of secularism, where the state keeps away from religious activities but at the same time respects the individual’s right to practice religion, runs through the Constitution. No religion is given any preference, like in Sri Lanka where Buddhism takes a special place. The Constitution also protects the rights of minorities by making it clear that the state cannot discriminate against them in any manner, even in granting aid.
In that sense, as the Supreme Court pointed out in SR Bommai vs Union of India in 1994, a composite reading of the Fundamental Rights “leave no manner of doubt that they [secular characteristics] form part of the basic structure of the Constitution”. The BJP government can through an amendment remove the word “secular” from the Preamble in the same manner in which it was added in 1977. But this will in no way alter the position that India is a secular country.
